Apply De Novo Review Because It Was Ideologically Opposed to the
Trial Court Decision?
The Equality Foundation litigation represents the instance in which the trial court fails to articulate factual findings in a way which shields appellate review. It also represents the instance in which the undisciplined application of fact typology signals the pos- sibility of ideological bias. For purposes of this discussion, it is help- ful to extract a few representative findings as articulated by the dis- trict court and place them into a typology.
[Finding of Fact #5] [sic] Sexual behavior is not necessarily a good predictor of a person’s sexual orientation. [sociological fact]
[Finding of Fact #13] Homosexuals have suffered a history of per- vasive irrational and invidious discrimination in government and private employment, in political organization and in all facets of so- ciety in general, based on their sexual orientation. [historical fact]
241. Id. at 257.
242. See, e.g., Georgia v. Ashcroft, 539 U.S. 461 (2003) (redefining the “effective exer- cise of the electoral franchise” for purposes of a retrogression analysis). In sanctioning sub- stantive rather than descriptive representation, the Court held that states need not create congressional districts which make it certain, but simply “likely . . . that minority voters will be able to elect candidates of their choice.” Id. at 482. The Court stated that minority groups should be expected to “pull, haul, and trade to find common political ground” through influence and coalition districts. Id. at 481-82; see also Holder v. Hall, 512 U.S. 874, 901 (1994) (Thomas, J., concurring) (ascribing to the substantive representation phi- losophy whereby “minorities unable to control elected posts would not be considered essen- tially without a vote; rather, a vote duly cast and counted would be deemed just as ‘effec- tive’ as any other. If a minority group is unable to control seats, that result may plausibly be attributed to the inescapable fact that, in a majoritarian system, numerical minorities lose elections.”).
[Finding of Fact #15] Gays, lesbians and bisexuals are an identifi- able group based on their sexual orientation and their shared his- tory of discrimination based on that characteristic. [sociological fact] [Finding of Fact #19] No Federal laws prohibit discrimination based on sexual orientation. Furthermore, voter back-lash around the country has lead [sic] to the repeal of numerous laws prohibit- ing discrimination against gays, lesbians and bisexuals. In 38 of the approximately 125 state and local communities where some sort of measure prohibiting discrimination based on sexual orien- tation has been adopted, voter initiated referendums have been placed on the ballot to repeal those gains. 34 of the 38 were ap- proved. [law-legislative fact]
[Finding of Fact #20] The amount of resources spent by the City on processing and investigating discrimination complaints by gays, lesbians and bisexuals is negligible. City resources spent on proc- essing and investigating all sexual orientation discrimination complaints is negligible. [historical fact]243
243. Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 264 (6th Cir. 1995), cert. granted,judgment vacated by 518 U.S. 1001 (1996). Here are the dis- trict court’s findings in full, with an attempt to place them within the typology:
1. Homosexuals comprise between 5 and 13% of the population. [sociological fact] 2. Sexual orientation is a deeply rooted, complex combination of factors includ- ing a predisposition towards affiliation, affection, or bonding with members of the opposite and/or the same gender. [socioscientific fact]
5. [sic] Sexual behavior is not necessarily a good predictor of a person’s sexual orientation. [socioscientific fact]
6. Gender non-conformity such as cross-dressing is not indicative of homosexu- ality. [socioscientific fact]
8. [sic] Sexual orientation is set in at a very early age—3 to 5 years—and is not only involuntary, but is unamenable [sic] to change. [socioscientific fact] 9. Sexual orientation bears no relation to an individual’s ability to perform, contribute to, or participate in, society. [historical fact]
10. There is no meaningful difference between children raised by gays and les- bians and those raised by heterosexuals. Similarly, children raised by gay and lesbian parents are no more likely to be gay or lesbian than those children raised by heterosexuals. [socioscientific fact]
11. There is no correlation between homosexuality and pedophilia. Homosexu- ality is not indicative of a tendency towards child molestation. [socioscientific fact] 12. Homosexuality is not a mental illness. [scientific fact]
13. Homosexuals have suffered a history of pervasive irrational and invidious discrimination in government and private employment, in political organiza- tion and in all facets of society in general, based on their sexual orientation. [historical fact]
14. Pervasive private and institutional discrimination against gays, lesbians and bisexuals often has a profound negative psychological impact on gays, les- bians and bisexuals. [socioscientific fact]
15. Gays, lesbians and bisexuals are an identifiable group based on their sexual orientation and their shared history of discrimination based on that character- istic. [sociological fact]
16. Gays, lesbians and bisexuals are often the target of violence by heterosexu- als due to their sexual orientation. [historical fact]
17. In at least certain crucial respects, gays, lesbians and bisexuals are rela- tively politically powerless. [sociopolitical fact]
If one accepts the validity of fact classification, many of those found by the trial court can fairly be characterized as sociological or adjudicative-legislative facts. For example, the trial court’s finding that “[g]ays, lesbians and bisexuals are an identifiable group based on their sexual orientation” is a fact of constitutional dimensions, as it immediately compels an equal protection analysis. The socioscien- tific fact that “[s]exual behavior is not necessarily a good predictor of a person’s sexual orientation” upends the premise of Bowers v. Hardwick,244 which conflated sexual orientation and sexual conduct
to find that antisodomy criminal statutes violate no constitutionally protected rights of gays and lesbians. By seeking to establish new policy or extend legal norms, those facts viewed by an appellate court would not be shielded by Rule 52(a) deference.
The Sixth Circuit, however, did not explicitly place the factual findings in specific categories, painting them all with only a broad brush of plenary review. Moreover, the Sixth Circuit gave no consid- eration to the possibility that some findings, such as “[t]he amount of resources spent by the City on processing and investigating discrimi- nation complaints by gays, lesbians and bisexuals is negligible,” should have been reviewed for clear error. Similarly, the district court’s finding that “[n]o Federal laws prohibit discrimination based on sexual orientation” was a statement on the status of the law,
18. Coalition building plays a crucial role in a group’s ability to obtain legisla- tion in its behalf. Gays, lesbians and bisexuals suffer a serious inability to form coalitions with other groups in pursuit of favorable legislation. [sociopolitical fact] 19. No Federal laws prohibit discrimination based on sexual orientation. Fur- thermore, voter back-lash around the country has lead [sic] to the repeal of numerous laws prohibiting discrimination against gays, lesbians and bisexuals. In 38 of the approximately 125 state and local communities where some sort of measure prohibiting discrimination based on sexual orientation has been adopted, voter initiated referendums have been placed on the ballot to repeal those gains. 34 of the 38 were approved. [law-legislative fact]
20. The amount of resources spent by the City on processing and investigating discrimination complaints by gays, lesbians and bisexuals is negligible. City re- sources spent on processing and investigating all sexual orientation discrimi- nation complaints is negligible. [historical fact]
21. The inclusion of protection for homosexuals does not detract form [sic] the City’s ability to continue its protection of other groups covered by the City’s anti-discrimination provisions. [historical fact]
22. Amending the city Charter is a far more onerous and resource-consuming task than is lobbying the City Council or city administration for legislation; it requires a city wide campaign and support of a majority of voters. City Council requires a bare majority to enact or adopt legislation. [political fact]
23. ERNSR campaign materials were riddled with unreliable data, irra- tional misconceptions and insupportable misrepresentations about homo- sexuals. [historical fact]
Id. at 265.
which also should have been accorded clear error deference.245 The
evidence emphasized, along with the Sixth Circuit’s failure to clearly discern the rationale for its pivotal de novo review decision, contrib- uted to the ideologically driven tone of the rest of the opinion.
At the opinion’s outset, the Sixth Circuit characterized the trial court’s findings of fact as “ ‘ostensible,’ ” then cited cases to support its typological framework.246 Calling the finding that homosexuals
belong to a quasi-suspect class “ ‘novel,’ ” the court invoked Bowers, ascribing to its flawed logic that since “homosexuals generally are not identifiable ‘on sight’ ” they cannot be classed into a constitution- ally recognized group.”247 Furthermore, the Sixth Circuit adopted the
antirights rhetoric of the Amendment proponents by wrongly insist- ing that Issue 3 imposed “no punishment or disability upon persons belonging to that group but rather merely remove[d] previously legis- lated special protection against discrimination from that segment of the population.”248 Later, the court stated that the “only effect of the
Amendment upon Cincinnati citizens was to render futile the lobby- ing of Council for preferential enactments for homosexuals qua ho- mosexuals . . . the realization of their political agenda is not constitu- tionally guaranteed . . . .”249
The district court did fail to announce its factual findings in a way to shield de novo review. Without question, the trial judge could have articulated those findings with greater care and clarity.250 Even if he
245. One could even contend that, depending upon the source of this proffer (such as through judicial notice or extra-judicial findings), an abuse of discretion standard should have been applied to the finding regarding federal laws and sexual orientation.
246. Equal. Found., 54 F.3d at 265; see alsoN.Y. Times v. Sullivan, 376 U.S. 254, 284 n.26 (1964) (constitutional predicates such as “actual malice”); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500 n.16 (1984); Powell v. Texas, 392 U.S. 514, 521-22 (1968); Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685-89 (1989); Paul Revere Ins. Co. v. Brock, 28 F.3d 551, 553 (6th Cir. 1994) (mixed questions of law and fact); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir. 1989) (constitutional facts and ultimate facts).
247. Equal. Found., 54 F.3d at 266-67. 248. Id. at 267.
249. Id. at 270.
250. For example, it can immediately be seen how Finding of Fact #15, “[g]ays, lesbians and bisexuals are an identifiable group based on their sexual orientation and their shared history of discrimination based on that characteristic,” drips with constitutional implica- tions. Compare Justice Phyllis Hamilton’s opinion in Planned Parenthood Federation of America v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004), in which two Planned Parent- hood agencies and others sought to enjoin the enforcement of Congress’s Partial-Birth Abortion Ban Act of 2003, 18 U.S.C.S. § 1531.Planned Parenthood, 320 F. Supp. 2d 957. In finding the ban unconstitutional, Justice Hamilton set forth very specific witness back- grounds and qualifications, and expert backgrounds and qualifications, as well as factual findings. Id. Note the qualitative difference of the facts as articulated by Justice Hamilton and those of Justice Speigel in Equality Foundation:
1. Like the Nebraska statute in Stenberg, the Act bans abortions performed at any time during a pregnancy, regardless of gestational age or fetal viability. In fact, Congress rejected alternatives and amendments to the Act that would
had, the outcome may have been the same. Nonetheless, the Sixth Circuit was equally obligated to articulate and justify its characteri- zation of the district court’s findings with clarity and precision. Cou- pled with its explicit use of ideologically inflammatory rhetoric, the Sixth Circuit’s opinion left the impression that any standard of re- view applied was incidental to the outcome it sought.251
have limited its applicability to viable fetuses. See 149 Cong. Rec. S3600 (daily ed. March 12, 2003) (statement of Sen. Feinstein); 149 Cong. Rec. H4939 (daily ed. June 4, 2003) (statement of Rep Greenwood); 149 Cong. Rec. H4948 (daily ed. June 4, 2003) (statement of Rep. Baldwin).
2. In performing all D&Es, including D&Es by disarticulation, and inductions, physicians “deliberately and intentionally” extract the fetus from the woman’s uterus and through her vagina. Tr. Vol. 1 at 76:19-21 (Paul); Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at 422:3-12 (Doe); Tr. Vol. 5 at 822:0-823:12 (Westhoff). Extraction of the fetus from the uterus, if brought through the cer- vix and vagina (as opposed to through an incision in the woman’s abdomen), is called a “vaginal delivery.” Tr. Vol. 1 at 75:20-76:5 (Paul); Tr. Vol. 3 at 421:6-11 (Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff).
3. The fetus may still have a detectable heartbeat or pulsating umbilical cord when the uterine evacuation begins in any D&E or induction, and may be con- sidered a “living fetus.” Tr. Vol.1 at 67:3-11; 76:6-18 (Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at 421:12-18 (Doe); Tr. Vol 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
4. Plaintiffs’ and the government’s experts agree that in any D&E or induction, a living fetus may be extracted in a breech presentation until some “part of the fetal trunk past the navel is outside the body of the mother.” Tr. Vol. 6 at 945:17-21 (Bowes); Tr. Vol. 8 at 1283:17-20 (Shadigian); Lockwood Depo 235:16-24; Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 1 at 99:16-2; 201:9-16 (Shee- han); Tr. Vol.2 at 281:22-282:3 (Drey); Tr. Vol.3 at 405:4-12; 422:3-19 (Doe); Tr. Vol 4 at 521:2-15; 551:19-552:4 (Broekhuizen); Tr. Vols. 4 & 5 at 678:23-679:14; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
Planned Parenthood, 320 F. Supp. 2d at 971-72.
251. See Equal. Found., 54 F.3d at 265. Proceedings subsequent to the Supreme Court decision Romer v. Evans, 517 U.S. 620 (1996), lend additional insight into and heightened suspicion toward the Sixth Circuit’s approach in Equality Foundation. In another example of Justice Scalia providing templates for lower courts to later adopt whether he is in the majority or minority, his dissent from the Supreme Court’s decision to vacate and remand in light of Romer was explicitly adopted by the Sixth Circuit on remand. Equal. Found. v. City of Cincinnati, 518 U.S. 1001 (1996). He distinguished Equality Foundation from Ro- mer on the grounds that “the lowest ‘electoral subunit’ did not wish to ‘accord homosexuals special protection’ in Equality Foundation,” where in Romer, Colorado’s Issue 2 involved a state constitutional amendment. Id.
On remand, the Sixth Circuit once again upheld the charter amendment’s constitu- tionality, expanding on the argument regarding the power of municipalities to enact cer- tain types of legislation. Equal. Found., 128 F.3d 289 (6th Cir. 1997). It stood by its earlier ruling, but now on the grounds that a “local measure adopted by direct franchise, designed in part to preserve community values and character, which does not impinge upon any fundamental right or interest of any suspect or quasi-suspect class, carries a formidable presumption of legitimacy and is thus entitled to the highest degree of deference from the courts.” Id. at 297. The en banc petition for rehearing was denied, with six dissenting judges. Equal. Found. of E. Cincinnati v. Cincinnati, 1998 U.S App. LEXIS 1765 (6th Cir. Feb. 5, 1998). Justice Gilman, in dissent, wrote:
On remand, the panel sought to distinguish Romer on a number of grounds, each of which ultimately had its genesis in the rationale proferred by the dis- senting justices in the order remanding this case for further consideration. As a
D. Summary
Concrete Works, Easley, and Equality Foundation represent three examples of the manner in which Rule 52(a) can be urged, circum- vented, or avoided. In Concrete Works and Easley, the debate over the applicable standard acted as a filter for ideological tensions in- volving affirmative action, race, and voting. Moreover, the arguments given urging or rejecting Rule 52(a) applicability were procedurally, if not intellectually, infirm. In Equality Foundation, while the Sixth Circuit was not wrong to articulate a fact typology for the district court’s findings, its manner in doing so failed to demonstrate an ap- preciation of the importance of giving transparency to its choice of standard of review.
It must be acknowledged that under most circumstances on ap- peal, choice of the applicable standard of review is not made by one judge. To the contrary, the choice of applicable standard arises out of either argument proffered by the appellants or appellees and consen- sus amongst two or more judges. While those circumstances may mitigate an argument of ideological bias, they do not entirely do away with the possibility of ideological bias that is shared between judicial colleagues. Consequently, it is important to examine the competing interests at play when selecting the standard of review from an institutional perspective.
VIII. BALANCING THE INTERESTS SERVED BY RULE 52(A) AND FACT
TYPOLOGY
Through the terms ”findings of fact,” “documentary evidence,” and “clear error,” appellate courts have broad flexibility in determining whether Rule 52(a) should apply. Moreover, appellate court fact ty- pology enables courts to circumvent or avoid Rule 52(a). The incon- sistent application of constitutional fact doctrine and the infirmities of legislative fact finding have special impact upon Rule 52(a)’s func- tion as a decisional mechanism for trial and appellate courts. It is important to ask: what jurisprudential interests are served or harmed by appellate court treatment of Rule 52(a) and fact typology? To maintain institutional credibility, jurists strive for decisional legitimacy, administrative efficiency, and comity. Decisional legiti- macy depends in part upon rules such as 52(a) being consistently ap- plied. Efficiencies are maximized by eliminating redundancy, clearly allocating decision making responsibilities, and establishing adjudi- cative finality. Comity is furthered through a regard for the respec-
majority of the Supreme Court obviously did not share the views of the dissent, using the dissent’s rationale is itself suspect.
tive responsibilities and authority between the trial and appellate courts and the competence engendered within their roles. System le- gitimacy, efficiency, and comity are each impacted by appellate in- terpretation of Rule 52(a) and fact typology. However, the indispen- sable values of decisional rule legitimacy, efficiency, and comity must be balanced against the importance of substantive legal norm legiti- macy through doctrinal coherence and the protection of substantive rights by correcting trial court error.
A. Appellate Interpretation of Rule 52(a) and Its Use of Fact